Industrial Relations Commission of New South Wales CITATION: Fallon -v- United Group Limited [2006] NSWIRComm 1090 APPLICANT PARTIES: Leonard Russell Fallon RESPONDENT United Group Limited FILE NUMBER(S): 574 of 2006 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - practice direction 17 - threshold question - Notice of Motion - operation of s.83(1)(b) - annual remuneration exceeding Statutory limit - claim dismissed. LEGISLATION CITED: Industrial Relations Act 1996 [NSW] Industrial Relations (General) Regulation 2001 HEARING DATES: 26/05/06 DATE OF JUDGMENT: 05/26/2006 EXTEMPORE JUDGMENT DATE : 05/26/2006 APPLICANT self represented LEGAL REPRESENTATIVES: RESPONDENT Mr B Gee, solicitor, from Fisher Cartwright Berriman Lawyers & Consultants DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 26 May 2006 Matter No IRC 574 of 2006 Leonard Russell Fallon -v- United Group Limited Application by L Fallon re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. EXTEMPORE DECISION ON NOTICE OF MOTION [2006] NSWIRComm 1090 1 This matter involves a claim for unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The claim was filed on 8 February 2006, by Leonard Russell Fallon (the applicant), and named the respondent employer as United Group Limited. The employer has been more accurately identified as United Group Rail Pty Limited (ABN 30097323852), (the employer). 2 The Commission now issues this extempore Decision in accordance with internal protocols established in conjunction with Practice Direction number 17. The Commission reserves determination in respect to any subsequent issue and publication of considered reasons for judgement which may be made at a later date. 3 Proceedings in this matter commenced on 28 February 2006, at which time McKenna C attempted to resolve the claim by way of conciliated settlement. In the absence of any settlement, further proceedings were conducted on 3 and 24 March 2006. Regrettably the matter remained unresolved and the employer raised preliminary issues that were said to establish an absence of jurisdiction or other invalidity of the unfair dismissal claim. 4 The major preliminary issue raised by the employer related to the applicant's annual remuneration allegedly exceeding the amount prescribed by Regulation made under section 83(1)(b) of the Act. McKenna C decided that this annual remuneration issue should be dealt with as a threshold question requiring determination prior to any Hearing of the substantive claim. 5 Consequently McKenna C made Directions which required that by no later than 11 April 2006, the employer file and serve a Notice of Motion together with evidentiary material to support the threshold question regarding the applicant's annual remuneration. Further, the applicant was Directed to file and serve all evidentiary or other material against the Notice of Motion by 2 May 2006. The employer was Directed to file and serve any reply material by 9 May 2006. 6 On 11 April 2006, the employer filed a Notice of Motion and an affidavit of Paul Gerard Johnson. On 2 May 2006, the applicant filed a Notice of Motion and an affidavit. A dispute arose about compliance with the Directions made by McKenna C. This dispute was the subject of proceedings before Staff J on 16 May 2006. These proceedings were described as "Consideration re Practice Direction 17" and included an extempore Judgement that, inter alia, varied the earlier Directions made by McKenna C. 7 The Judgement of Staff J made on 16 May, required the applicant to file and serve by facsimile transmission on or before 4pm Monday 22 May 2006, "any material that he wishes to rely upon in reply to the notice of motion and affidavit filed in support thereof." Further, the respondent was permitted to adduce additional oral evidence in reply to the material filed by the applicant during the proceedings on 26 May 2006. 8 The applicant complied with the amended Directions included in the Judgement of Staff J and he sent a facsimile transmission to the Commission shortly after 2:00pm on 22 May 2006. This facsimile transmission totals 28 pages including a 10 page Statement of the applicant together with various attachments. 9 The matter has proceeded to a Hearing of Notice of Motion today, 26 May 2006. I note that the Confirmation of Hearing documentation dated 2 May 2006, states that the proceedings today are fixed "for Hearing Notices of Motions". It would appear that the prospect that today's proceeding might involve Hearing of the applicant's Notice of Motion filed on 2 May 2006, in addition to the employer's Notice of Motion filed on 11 April 2006 has been created by the Confirmation of Hearing documentation. Certainly the applicant has sought to advance his Notice of Motion and the issues raised therein. 10 However, as a matter of logic, the employer's threshold question must be Determined before there could be any contemplation of other issues relating to the unfair dismissal claim. Simply, if the employer's threshold question is upheld the claim can go no further and that is the end of the matter, subject to Appeal of course. It should also be noted that the Judgement of Staff J of 16 May, does not provide for any program for dealing with evidence or other material concerning the applicant's Notice of Motion. Therefore, as a matter of natural justice the employer would have to be provided with a reasonable opportunity to file and serve materials going to the applicant's Notice of Motion before the Commission could dealt with that Notice. 11 Consequently the Commission has proceeded today to Hear the employer's Notice of Motion filed on 11 April 2006. The Notice of Motion was supported by evidence provided by the affidavit of Paul Gerard Johnson, supplemented by his oral testimony. The Notice of Motion was opposed by the applicant who relied upon his facsimile transmission of 22 May, including his Statement with attachments. The applicant elaborated upon his written material with oral testimony. 12 The threshold question that the Commission is required to determine is reasonably straightforward. The employer has sought Interlocutory Relief claiming that the applicant's annual remuneration exceeded the amount fixed by Regulation pursuant to section 83(1)(b) of the Act. 13 Section 83(1)(b) of the Act states: "83(1) [Application] This Part applies to the dismissal of: (b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations). 14 The relevant amount fixed by Clause 5 of the Industrial Relations (General) Regulation 2001 is $94,900. These was no issue that the applicant was an employee for whom conditions of employment were not set by an industrial instrument. The application document describes the occupation of the applicant as "Contracts Manager". Further, in answer to questions about identification of a relevant Award or agreement the application contains the words "Not Applicable". 15 The application further states the normal gross pay each week to be $1,636.06 and mention is made of the provision of a "Company Car". On the information and figures contained in the application document, the annual remuneration of the applicant would be calculated to be close to the amount as fixed by section 83(1)(b) of the Act. The stated weekly figure multiplied by 52 equals $85,075.12 and if a 9% superannuation contribution is added the annual remuneration becomes $92,731.88. This means that if the quantified annual benefit for the provision of a motor vehicle for private use exceeded $2,168.12 the applicant's annual remuneration would overtake the Statutory limit and the applicant would be excluded from access to a claim for unfair dismissal. 16 Consequently, an examination of the information contained in the application document provides considerable difficulty for the claim to survive the operation of the exception to access that is established by section 83(1)(b) of the Act. Regrettably for the applicant, the evidence presented during the Hearing today confirms and exacerbates these fundamental difficulties. 17 The evidence provided by Mr Paul Johnson included annexure "B" to his affidavit, Exhibit 1. This annexure was a copy of a letter dated July 15, 2005, addressed to the applicant and includes a table that sets out the annual salary options available to the applicant. These options state annual salary figures of wages and superannuation, exclusive of any motor vehicle or other benefits, of $101,239. 18 The applicant asserted that; (a) he was unable to utilise the company motor vehicle for a period; (b) he was unable to obtain clarification about the superannuation options that were available to him; and (c) he was not provided with pay slips, a group certificate or other "obligations in regard to the payment of salary". The applicant said that the employer "failed in its basic and essential obligations in regard to salary, superannuation, provision of a company vehicle and other obligations... " and therefore the employer could not rely upon section 83 of the Act, and the Notice of Motion should be dismissed. 19 The applicant appears to have legitimate complaints about certain aspects of his employment, for instance, the employer seems to have unlawfully withheld payment of entitlements upon termination of employment. Further, the applicant may be an injured employee who was dismissed in contravention of section 99 of the Act. These complaints may be actionable in other proceedings, but they have no relevance to or proper connection with, the determination of the threshold question raised by the employer in these unfair dismissal proceedings. In that regard the applicant did not provide any evidence upon which the Commission could establish that he received remuneration and other benefits which, when quantified, would be less than an annual remuneration of $94,900. In particular there was no material that could rebut the employer's evidence that the applicant's annual remuneration including salary and superannuation components was, as stated in annexure "B" of the affidavit of Mr Johnson, an amount of $101,239. 20 Therefore the Commission must record as a finding of fact, that the applicant's annual remuneration was, at least, $101,239. This finding provides compelling basis for granting the Interlocutory Relief as sought by the employer. The amount of $101,239 exceeds the remuneration limit fixed by Regulation pursuant to section 83(1)(b) of the Act, that relevantly being $94,900.00, and, as the applicant was an employee for whom conditions of employment were not set by an industrial instrument, he is excluded from access to make claim in respect of unfair dismissal pursuant to Part 6 of Chapter 2 of the Act. 21 Consequently the Commission is unable to further consider the claim made by the applicant. Therefore the application is dismissed and these proceedings are concluded accordingly. oooOOOooo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.